Tweet in haste, repent at leisure: A lesson for Danny Baker

May 16, 2019 • Askews Legal LLP

The BBC 5 Live Presenter Danny Baker has recently been sacked by the BBC over a picture he tweeted depicting a couple holding hands with a chimpanzee dressed in clothes along with the caption: “Royal Baby leaves hospital”. Danny Baker deleted the tweet and accepted that the same was a mistake and grotesque. However, he rejected claims that it had racial undertones. BBC were clearly of the opposite opinion citing that the tweet went against the values that it aims to embody.

Employees generally have the right to express themselves if it does not infringe on their employment and/or is outside of work. There is a balance, however, to be struck and much will depend on context and the type of employment. An employee’s conduct on social media platforms may damage the employer’s reputation, even if it takes place outside of work, in circumstances where:

• The employer can be linked to the conduct i.e. where the employer is identified on a social media account as being the employee’s employer; • A reasonable person could assume the conduct was condoned by the employer; • The employee’s account was not set to ‘private’ so it was exposed to a wider audience thus increasing the potential reputational damage for the employer.

The test is whether the employer is entitled to reach the conclusion that the tweets may cause offence to customers/staff (in this case, BBC colleagues/listeners) NOT whether the employer can actually show the tweets caused offence. The mere “potential” is enough to warrant disciplinary action against the employee which could include summary dismissal depending on the seriousness of the conduct and the consequences for the employer.

Race is a protected characteristic under the Equality Act 2010. The Equality Act applies not only in the workplace, but to providers of goods and services. A victim can pursue discrimination and harassment claims against both the individual perpetrator and the employer as employers are vicariously liable for the acts of its employees. With harassment, it is the perception of the victim that is relevant NOT what the perpetrator intended. Therefore, it is irrelevant that Danny Baker did not intend for the tweet to have a racial element, it is nonetheless racial harassment if a person perceived it to be offensive on the grounds of race.

For specialist advice on workplace discrimination or on any other employment law matter, please contact our Coventry based Employment Law Solicitors: